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Thursday, June 23, 2016

Uniform Civil Code: Debates and Possibilities

By Sambhavi Ganesh*

Introduction

Part III of the Indian constitution
contains the much-extolled Fundamental Rights. Articles 14 - 24 guarantee the protection of life and liberty,
equality before law, and prohibit discrimination. These are clearly based on
the abstract, liberal notions of universal citizenship. Articles 25-30 deal with particular collectivities or groups –
rights of freedom to religion, cultural and educational rights – that is,
freedoms to propagate and practise any religion, freedom to manage religious
affairs, protecting the interests of minorities, and the right of minorities to
establish educational institutions. These freedoms are a part of our
inalienable fundamental rights, and rightly so. However, they are silent about
some underlying tensions arising out of these very rights, the primary such
tension being individual rights vs. community rights. This conflict is most
manifest in the debates around the Uniform Civil Code (henceforth UCC), which
the essay deals with. This essay traces the evolving contours of the UCC
debate, the community and individual positions, and the women’s rights
perspective which is sidelined by both sides of the debate. (Menon, 1998)

UCC
debate in the Constituent Assembly

We have a uniform criminal law established
by the Indian Penal Code and the Criminal Procedure Code. However, civil
matters, or those pertaining to marriage, divorce, maintenance, inheritance,
succession and adoption are governed according to the laws of
different religious communities. Members of the Constituent Assembly were
sharply divided about a Uniform Civil Code or a common civil law for all
citizens, irrespective of their cultural backgrounds. Ambedkar strongly felt
the need of a UCC because, as he put it, “'I personally do not understand why
religion should be given this vast, expansive jurisdiction”. (Jaffrelot, 2003)
Those who were opposed to a Uniform Civil Code – members of the Hindu Maha
Sabha, Dr. Rajendra Prasad, and some members of the minority communities argued
that its provisions would go against their religious beliefs and hence their
fundamental rights. Hence, a compromise was arrived at and the UCC became a
Directive Principle of State Policy in Article 44, which is not enforceable by
a court; it asks the State to ‘endeavour to secure for the citizens a uniform
civil code throughout the territory of India.’ (Ministry of Law & Justice)

A sub-committee under Ambedkar had drafted
a Hindu Code Bill inspired by the British’s endeavour to modernize the Hindu
society. According to Agnes (2015), it was essential to reform the Hindu laws
because Hindu women were lagging far behind their counterparts, lacking a right
to divorce and right to inherit property. Ambedkar resigned over the lack of
support of the Congress and Nehru in questioning the existing social
formations. The bill was consecutively diluted to please the Hindu
conservatives and finally passed in a piecemeal fashion in the mid-1950s -
Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and
Guardianship Act and the Hindu Adoption and Maintenance Act.

Hindu
Code Bill

The Hindu Code Bill provided property and
divorce rights for women, set the minimum age of marriage as 18 for women and
21 for men, and prohibited dowry and bigamy, which was a significant
improvement compared to the state of women’s rights previously. However, the
bill also had to gain the support of hard-line conservatives, who had been
opposed to divorce and property rights for women because they were alien to
Hindu customs. Hence, it implicitly allowed for the continuation of some
patriarchal and Brahminical laws to compensate for its liberty. It is necessary
to have a brief understanding of the provisions of the Hindu Succession Act and
the Hindu Marriage Act to proceed further in the debate.

Hindu
Succession Act, 1956 – This act gave full
property rights to women, but did not give daughters inheritance rights in
ancestral property, as per the Mitakshara, a Hindu legal text. This was amended
only in 2005, when daughters were given equal rights as sons for inheritance.
However, it was still not clear if daughters could be ‘kartas’ of a Hindu
Undivided Family. It was only in 2016 that a judgment of the Delhi High Court
ruled that the eldest female member of a Hindu Undivided Family can be its
"karta" (manager of a Hindu Undivided Family).

Hindu
Marriage Act, 1956 – Hindu marriages need
not be registered; caste and region specific rituals like the ‘saptapadi’ (where the husband and wife
take seven steps together), ‘kanyadaan’ (gift
of a maiden to the groom) and other customary rites are necessary to solemnize
a Hindu marriage. These ambiguities have provided Hindu men with ample scope
for a second marriage. (Agnes) The Supreme Court takes pains to uphold the
validity of only one marriage, terming the other relationship as
“marriage-like”. The other wife has to prove the existence of a marriage,
reversing the burden of proof rule; her maintenance rights and social status
are foregone. Moreover, a Hindu is defined as someone who is not a Christian,
Muslim, or a Parsi, which means that Sikhs, Buddhists, Jains and people
belonging to other minority communities fall under this act. (Sikhs have their
own marriage act from 2012) A marriage between people of any of these religions
coming under the ‘Hindu’ fold or a Hindu inter-caste marriage is treated as a
Hindu marriage and not a special marriage. This provision irons out all
diversities between and within these communities and treats Hinduism as the
quintessential religion of India and an archetype to be followed by the rest of
the religious communities.

Communalization
of the UCC debate

The UCC debate took a new turn after the
landmark judgement in the Shah Bano case (1985) [undone by the ironically named
Muslim Women (Protection of Rights on Divorce) Act, 1986].Shah Bano, a 62-year-old mother of five, was divorced
by her husband in 1978. She filed a criminal suit in the Supreme Court in which
she won the right to alimony. However, the Indian Parliament reversed the
judgement under pressure from Islamic orthodoxy.(Muslim law only provides for 90 days of
maintenance) The Muslim Women (Protection of Rights on Divorce) Act, 1986
diluted the judgment of the Supreme Court and denied Muslim divorcées the right
to alimony from their former husbands. This was reversed by a later judgement
in Danial Latifi vs. Union of India, which provided for fair maintenance not
restricted to the iddat (90 days) period only. These developments, coupled with
the communal tensions owing to the Ramjanmabhoomi movement made the Hindu right
the primary spokespersons for a Uniform Civil Code. They were primarily
concerned about the possibility of Hindu men converting to Islam to marry
another woman to get heirs, unsuccessfully masking patriarchal privilege and
male jealousy with spiritual gains. (Sangari, 1999) Statements have been issued
by a BJP MP encouraging Hindu women to have four children and protesting against
Muslim polygamy because to set right the demographic imbalance.

The underlying belief being propagated is
that while Hindu law has been modified, Hindus were secular and modern, and the
rest had to follow suit. However, two caveats are in order. Firstly, The Hindu
code was not modified, but merely codified; the existing plurality of legal
codes was brought together in the bill. Secondly, since all religious laws
discriminate against women, the Hindu code bill has been no different and has
incorporated some discriminatory features. As seen earlier, the loopholes in
the Hindu Marriage Act have ensured that many Hindu men do away with bigamy and
avoid paying maintenance. However, in the case of Muslims or Muslim converts
having bigamous relationships, the judgements have held that their laws need to
be modified. The Sarla Mudgal (1995)[1]
case judgement reinforces this idea that bigamy happens only through conversion
to Islam. However, a 1974 government survey shows that Muslims account for 5.6
per cent of all bigamous marriages, whereas upper-caste Hindus account for 5.8
per cent, translating into real numbers as one crore Hindu men and 12 lakh
Muslim men. (Agnes, 2015) Moreover, all the wives of a Muslim man are entitled
to equal legal and social rights. This is better than the extralegal bigamy of
Hindu men. (Menon, 2014) This does not deny the fact that bigamy/polygamy is
morally questionable; the implication is that Muslim marriages are contractual
and hence women within the marriages have more rights than a sacramental Hindu
marriage. The communalization of the UCC debate has sidelined the real issue of
gender justice and human rights. Patriarchal privilege, and not religious laws,
is the main reason behind differential personal laws. (Agnes, 2015)

Feminists
and the Left on the UCC debate

Feminists and the Left were earlier in
support of the UCC. However, during the 80s, there was a conflation of the
interests of the feminists and the Hindu right in their demand for a UCC. The
pro-UCC position taken by the right and the Dalit movements of the 80s raised
questions in the feminist movement. It was realized that the feminists had
fallen into the trap of assuming identities like caste, community, and region
as pre-modern and projecting a Hindu, upper-class, upper-caste, urban woman as
the ideal woman. In other words, the biologically determined basis of gender
was not considered in tandem with the different cultural settings that people
inhabited. To consider law and jurisprudence as the means for a gender-just society
banks on the abstract, universalized conception of citizenship and drives the
workings of culture underground. (EPW, 1997)

Uma Chakravarty highlights some examples
of caste and gender working together in subordinating women. According to her,
upper caste women uphold caste norms with as much fervour as men, perhaps more.
Upper caste women participate in the very caste system which subordinates them
because it gives them a degree of power under the condition of compliance of
gender norms. Oppressive institutions like patriarchy are ‘invisibilized’ under
the notions of upholding the traditions and culture of families. The Mathura
rape case of the 1970s created an image of a ‘chaste and virtuous upper caste
woman’and the rest (lower caste
women) being excluded from justice in rape cases. Bhanwari Devi, an activist,
was raped in retaliation to her work against child marriage. The judge held
that an innocent upper caste man wouldn’t rape a lower caste woman because it
is polluting and against Indian culture; it was the victim who was abnormal.
(EPW, 1997) Seen in this light, a uniform set of laws would only aggravate
social hierarchies in accordance with the existing power structures.

Conclusion

The Hindu right has assumed the
progressive nature of the Hindu Code and may want a UCC modelled on its lines.
The judiciary has given landmark judgements pertaining to gender justice in the
case of uncodified laws, but has stuck to the letter of the codified Hindu law.
The feminists and the left are of the opinion that a UCC might imperil the
cultural diversity and divide the feminist movement further. As we have seen,
the constitution has only given a single-sentence guideline to implement the
UCC, not going into the details of what it would contain. Hence, all the
aforementioned actors assume a certain kind of UCC; the arguments are not based
on a solid body of laws. The Supreme Court has rightly left the task of framing
a UCC to the Parliament. Only when the Parliament brings about a bill on the
UCC would the stakeholders be able to debate on its various provisions. Till
then, the issue would be debated over and over again without any solution in
sight. On the other hand, it should not be assumed that a body of laws
bypassing cultural change would bring about any substantial improvement in the
questions of gender justice and rights. To this end, more laws should be
enacted which are not covered by personal laws and pertaining to equality and
gender justice.

I
am grateful for the insights provided by Sukriti Sharma’s paper, ‘Uniform Civil
Code: A Political Conundrum’, published by Centre for Policy Analysis, August
2015.

*Sambhavi Ganesh is an Intern at CPPR. The Views expressed by the author is personal.

[1]In Sarla Mudgal v. Union of
India, the SC in1995 laid down the principles against the solemnizing
second marriage by conversion to Islam, with first marriage not being
dissolved. The judge held, “The Hindus have forsaken their
sentiments in the cause of the national unity and integration, some other
communities have not.” (Source: Wikipedia)